Miami Beach

Everyone who moves on Miami Beach, regardless of the form of transportation, has a pet peeve about traffic scofflawry. Mine as a pedestrian is drivers who park in crosswalks while waiting for a red light to change or to make a turn.

Guaranteed that the law will not be enforced by the police department even if the violation occurs right in front of a officer, who may himself disregard the law with impunity because the police department is understaffed and has better things to do than enforce trivial laws.

I understand that drivers may stop in a crosswalk at a stop signal because otherwise they cannot see oncoming traffic. But to do so when unnecessary as a matter of habit and without consideration for pedestrians is inexcusable.

I encountered a very bad example this morning. The driver was eating and talking to his passenger as she was preoccupied with something on her lap, perhaps her cell. It was as if they were in their living room, and could care less about anything outside.

I could not resist taking a few pictures of this typical behavior inasmuch as the license tag included the word BAD.

Dan Gelber stooped to conquer his opponent, Commissioner Michael Grieco, in the race for City of Miami Beach mayor by casting the first stone, or at least Grieco says so, out of sheer desperation, using an unethical “push poll” to push voters into believing that Grieco is a political prostitute.

Up to that point in the campaign, Grieco had been saying that “Gelber is a good man.” He might have remained silent now rather than lower himself to the traditional political mudslinging that Gelber is an old hand at in his professed career of fighting corruption, yet he took the bait and strenuously denied the charge.

He called Gelber “Dishonest Dan” for using a fake poll to advance himself to the coveted position of mayor by suggesting that he, Grieco, was using a friend’s political action committee to raise money from people doing business with the city. Hypocrisy was apparently afoot, for he countercharged Gelber with using an unregistered PAC to his own ends. He admitted to having “many friends who chair or participate in political committees, campaigns, and other forms of political free speech,” but denied that he had any control over or raised money for a PAC by the time he made the statement to the Miami Herald, which did not name the PACs alluded to.

We recall that Richard “Tricky Dick” Nixon pioneered push polling, an unethical practice condemned by the American Association of Political Consultants and the American Association for Public Opinion Research and ethics activists who like to see it outlawed. Democratic voters received telephone calls during Nixon’s 1946 run for the U.S. House against Democrat incumbent Jerry Voorhis: “This is a friend of yours, but I can’t tell you who I am. Did you know that Jerry Voorhis is a communist?”

The negative aspersion does not have to be stated as a fact with push polling. When George W. Bush ran for governor of Texas in 1994, voters were asked whether they would be more or less likely to vote for Governor Richards if they knew that lesbians dominated her staff. During Barrack Obama’s presidential candidacy in 2008, callers insinuated that he was a Muslim or hostile to Israel.

So would you be likely to vote for Grieco if you knew he benefited from a dirty political action committee and then lied about it? If Grieco were a Machiavellian politician, he might ask, “Would you vote for Gelber if you knew he was a bigot and hypocrite?” Or he might have just said, “Gelber is a good man, and certainly is not a better than thou bigot and hypocrite,” knowing that people tend to forget the “not” and would then associated Gelber with bigotry and hypocrisy when his name came to mind.

The greatest sin around Miami Beach, a city already infamous for its corruption over the decades, is the use of soft-money political action committees, whether technically illegal or not. The sordid reputation of such PACs was pioneered on the beach by Mayor Philip Levine when he got on the horn to hustle money for Relentless For Progress, a “dirty” PAC headed by sitting Commissioner Jonah Wolfson, a clever lawyer with a sense of humor—the initials of the committee, RFP, were also the initials of Request For Proposal, the name of the process used for obtaining bids on government contracts.

Levine is loaded, but the self-made businessman in him apparently did not want to lay out more hard-earned money out of pocket to be reelected to a position paying a pittance. He had already spent over a million dollars out of pocket for the mayor’s seat and seats for the bevy of commissioners that purchased him a “reformist” majority on the commission and rendered him a strong mayor in a city with a weak mayor charter.

Relentless For Progress raised hundreds of thousands of dollars right off the bat. Its success was obviously due to the fact that many of the contributors were somehow doing business with the city. Wolfson is not an incompetent lawyer: There was no definite quid pro quo, or promise made to earmark the contributions for the benefit of a certain candidate, therefore no apparent violation of ethics laws. Taxpayers were howling blood murder, as if politicians are charged with working for the whole community therefore are not supposed to do anything to favor particular contributors. The high regarded city attorney, Raul Aguila, opined the PAC was legal, but Wolfson folded the PAC, anyway, and refunded the unspent portion. The city commission slightly amended its political contribution ordinance.

So it seems that Gelber is playing on the public fear that Grieco is a miniature Levine. Both candidates are using their families and careers as prosecutors and politicians to bolster their credibility. Gelber emphasizes fighting corruption as usual. Grieco has the edge, however, in the minutia of city politics, and is well known lately for his battles against massive crowds that would float or hip hop and trash or shoot up Miami Beach.

Grieco says he has “evolved” from serving Mayor Levine, a wealthy developer and public relations mogul, as his right-hand protégé, and has often bitten the hand that once fed him on the dais, yet he wholeheartedly backs the continuation of the mayor’s epic struggle against the Great Flood, which is expected to wash away the Sins of South Beach anytime within the next fifty years, perhaps before the end of this year.

There may or may not be PACS, and any existing PACS alluded to may or may not be in compliance with the elections laws, but dishonesty in all its forms including outright lying is definitely corrupt. Gelber seems to have reasserted his claim in an email blast, so I asked Grieco if Gelber is a liar. Grieco responded with an “?” He did not respond when the charge was more fully described to refresh his memory. Joey Flechas has been asked for his fact-checking documentation of the PACS referenced by both sides. Gelber’s campaign has not yet responded to requests for documentary proof.

June 7, 2017

RAUL AGUILA, CITY ATTORNEY

Estimado Aguila:

I hope you are enjoying business as usual.

Below is a link to a recent Miami Herald article in reference to allegedly “dirty” PAC activity on the part of Commissioner Grieco that supports Candidate Dan Gelber’s notion that it is prohibited by city ordinance.

Curiously, the behavior alleged seems almost identical to that of Mayor Levine/Jonah Wolfson that you deemed legal. A minor change was made in the ordinance later that did not make sense to me at the time.

Attached is a pdf of an article about the first incident.

I happen to be quite fond of Michael, but since I have covered the PAC issue in a recent article, with a title asking if lawyers and politicians are dishonest, I am duty bound to find the truth in this instance the best I can

A pdf of my query about honesty is also attached.</

I am hoping that you will look in to the subject, and render your opinion on it

Today The Miami Herald chose to publish an article about a political committee that has raised money to engage in political speech. In a clearly coordinated effort, Dan Gelber’s campaign immediately sent an Eblast attacking me over it. However, thus far, the only documented communication attributed to that particular committee was an Eblast the day after the Memorial Weekend Holiday attacking me and my effort to make the Air and Sea Show a new attraction for our city. Many of you received it and called it out for the smut it is. That was a part of Dan Gelber’s coordinated effort

I want to thank in advance so many of you, Miami Beach’s residents, who have contacted me with support and encouragement. I appreciate you seeing the truth and opting to ignore what is a clearly my opponent’s attempt to distort my record, attack my character and avoid talking about substantive issues of the city

Since last year, political consultant Christian Ulvert, and those who pay him, have embarked on a smear campaign to attack my character and falsely attribute The Herald story’s political committee fundraising to me. As I’ve stated for the record and full transparency:

“I know the chairmen of many political committees, such as John Morgan, Ben Pollara, Brian Abraham, Stephen Bittel, Adonis Garcia and others through my political, personal and professional relationships over the years, so the premise of your question and this article itself merely makes this publication an accomplice to a dishonest attack on me by my political opponent, his consultant, and developer backers. As I have demonstrated, this is a textbook case of character assassination, and in any other arena this would constitute an act of slander/libel.

Unfortunately, rather than report my quote within its original story, The Herald opted to place it at the end with the preface, “Michael Grieco statement, After this article appeared online, Michael Grieco contacted the Herald and asked that the following statement be published:” Yesterday, in person, I made it clear to The Herald reporters that this anticipated written quote should have been my on-the-record response to begin with. In short, and in truth, Dan Gelber’s attack on me is founded on a false accusation based on one person who I’ve never solicited money from, a Chair of a political committee raising money independent of me (which is anyone’s right to do), and the attack by an disgruntled developer who wants Gelber to be Mayor. The truth – Dan Gelber has devolved into either a bad lawyer or an outright corrupt liar, or both.

The Herald article quotes the developer Bradley Colmer, affiliated with Deco Capital. This developer tried to strong-arm me to support a height increase and spot zoning application in Sunset Harbor. I stood up to the developer in defense of The Lofts residents and in opposition to the illegal act of spot zoning. This height increase was mired in scandal, as Mayor Levine himself had to recuse himself because he stood to directly profit from this height increase due to his ownership of neighboring property.

Evidence reveals that Gelber, developer Colmer, and developer/absentee-Mayor Levine share the same political consultant, Christian Ulvert, and the evidence reveals they are illegally coordinating to attack my character and falsely accuse me of raising money for the political committee addressed in today’s article.

I remind everyone that it was Mayor Levine who spearheaded the fundraising controversy in 2015 for the Relentless for Progress PAC, which I had nothing to do with. Perhaps this is Gelber’s way of deflecting or playing defense because he, in fact, is Levine’s puppet and hand-picked candidate. Powerful people truly do have powerful connections, and will stoop to the lowest levels just to win the Mayor’s office.

I am trying to run my campaign to be your next Mayor mainly on a platform of independent leadership, experience, achievements as a Commissioner, and vision for our city’s future. But Gelber (who only this year surfaced in our city politics) and his henchmen have taken this election season down a path that leaves me no other choice than to fully reveal Gelber’s dishonesty, hypocrisy, and bad positions on issues that adversely affect our local quality of life.

Very soon, I’ll begin my campaign communications to the public. Because of Gelber, it will contain a lot more comparison messaging about us than the predominantly purely positive advertisements I had intended. But we’ll have to thank Dan and his henchmen for that.

Despite my opponent’s continued lies and denial about his secret PAC, the Miami Herald has just published a second investigative piece that confirms that Michael Grieco is indeed behind it.

As the Miami Herald wrote, “..new evidence suggests otherwise: Handwriting on a public document filed by the group — People for Better Leaders — is identical to handwriting on paperwork the commissioner filled out for city elections, according to two well-regarded forensic document experts.”

Here’s the bottom line.

You

deserve to have the truth from your elected official. There is a pattern of behavior that follows Michael Grieco and the truth is unraveling when it comes to his secret PAC.

“It is my professional opinion within scientific probability and in accordance with industry standards, that Michael Grieco is identified as the author of all the extended writing appearing on [the PAC document],” Flores wrote in a sworn affidavit.”

So far Michael Grieco’s response to these very telling stories has been to accuse the newspaper of a conspiracy, and then somehow blame me for the Herald’s report of his misconduct ––attacking me and my record of service.

I’ve spent a good deal of my life in service to my community – as a long time federal corruption prosecutor, a big brother, a state legislator. No one – ever has accused me of anything even remotely close to what my opponent has said about me.

I appreciate that some people — when they feel cornered — will panic and display their worst side.

With evidence mounting that he is behind this PAC, my opponent should drop the name-calling and come clean with the voters.

For months, Miami Beach Commissioner Michael Grieco insisted he was not involved in a mysterious political group raising money from developers, lobbyists and city vendors, just as he launched a surging campaign for mayor.

“It is absolutely untrue,” Grieco told the Miami Herald on Tuesday. “You can look right into my soul.”

But new evidence suggests otherwise: Handwriting on a public document filed by the group — People for Better Leaders — is identical to handwriting on paperwork the commissioner filled out for city elections, according to two well-regarded forensic document experts.

Their findings directly link Grieco to the political action committee he has repudiated.

YOU CAN LOOK RIGHT INTO MY SOUL.

Michael Grieco

So far, People for Better Leaders has raised $200,000 from Beach residents and special interests. The political action committee, or PAC, is run by Grieco’s friend, Brian Abraham, the former manager at King of Diamonds, a Miami-Dade strip club.

Abraham’s signature appears on a document filed to state election authorities by People for Better Leaders. But the rest of the form was filled out by the same person who completed Grieco’s city campaign paperwork, according to Thomas Vastrick, a forensic document examiner based in Central Florida.

Vastrick conducted a side-by-side examination of letters from Grieco’s handwriting and the PAC document, as is standard industry practice. Differences in handwriting make each person’s script unique.

“The evidence brought me a very high level of confidence that they were written by the same person,” said Vastrick, who has 40 years of experience in the field and worked for the law enforcement arm of the U.S. Postal Service for more than a decade.

He has testified as an expert witness in federal and state courts around the nation, written books and held a research position at the University of Central Florida. He also sits on the board of directors of the American Academy of Forensic Sciences.

On Tuesday, the Herald published a story outlining Grieco’s connections to the PAC. The article included an interview with a Miami Beach real estate investor who said Grieco recommended donating to the PAC. Another donor said he contributed to the PAC at a Grieco fundraiser in South Beach.

Grieco said earlier this week he had nothing to do with the PAC, and that people who claim otherwise are lying.

Last year, the city passed a law to prevent campaigns from soliciting special interests for PACS. People for Better Leaders has become controversial because it accepted donations from a Miami Beach vendor and a lobbyist, as well as others with business before the city.

Emailed a copy of both handwriting reports Thursday, Grieco said he needed 48 hours to respond.

“Note that my calendar doesn’t and won’t revolve around yours,” he wrote.

Writing on the wall

Grieco’s fingerprints may not be all over the PAC, but his handwriting appears to be.

The Herald hired Vastrick to perform the analysis after it was given a previous expert examination also linking Grieco to the PAC document. That analysis was paid for by a longtime ally of Grieco’s opponent in the mayoral race, Daniel Gelber, and performed by handwriting analyst Dianne Flores of Miami. Like Vastrick, Flores is considered an expert in the field of forensic handwriting analysis.

“It is my professional opinion within scientific probability and in accordance with industry standards, that Michael Grieco is identified as the author of all the extended writing appearing on [the PAC document],” Flores wrote in a sworn affidavit. She declined further comment.

Vastrick’s report represents an independent confirmation of her findings.

In order to ensure Vastrick came to an unbiased conclusion, the Herald did not tell him any details about the controversy surrounding Grieco and the PAC, nor did it inform him of Flores’ earlier conclusion. His examination was based on the same documents used by Flores.

Flores was commissioned by Miami attorney Samuel Rabin, who has donated $1,000 to Gelber’s mayoral campaign, the maximum allowable, according to campaign finance records. Rabin donated an additional $1,000 through his law firm, records show. He did not respond to a phone call Thursday.

The PAC document examined by Vastrick and Flores is a request to the Florida Division of Elections for credentials to use its website, dated Nov. 6, 2015. The form names Abraham and accountant Brian George as the PAC’s officers. Neither man has any political experience. They have not responded to messages. Abraham was not at his family’s Coral Gables office Thursday morning.

The Grieco campaign documents include candidate statements, financial disclosures and campaign-finance filings. All bear his writing.

Expert analysis

The accuracy of handwriting comparison is sometimes contested, as are some other forensic sciences. But courts around the nation allow expert testimony from handwriting analysts, and judges and juries use their findings in reaching verdicts. In Florida, state courts allow witnesses to testify to the authorship of disputed handwriting.

Rumors about People for Better Leader’s connection to Grieco started circulating in January. Outside political fund-raising groups are unpopular on the Beach because of former Commissioner Jonah Wolfson’s Relentless for Progress PAC. Wolfson and Mayor Philip Levine raised money from city vendors and lobbyists for the group before the last Beach election.

In response, commissioners passed a new campaign-finance law in January 2016. The law’s intent was to prevent elected officials and candidates — and people working with them — from shaking down special interests for political access. The commission, including Grieco, voted unanimously in its favor.

Two of the donations to People for Better Leaders came from city vendors and lobbyists. If Grieco or someone acting on his behalf solicited those donations, he could have broken the new law.

An additional Miami-Dade County ordinance, implemented in 2017, would have required Grieco to register to undertake any fund-raising activities for the PAC.

In an interview before the Herald’s original story was published, Grieco doubled down on his denial, emphatically stating that he had nothing to do with the PAC. He and his political consultant, David Custin, said his political enemies, including Gelber, are conspiring to discredit him.

The commissioner then responded angrily to the story once it appeared online, asking if a reporter was on Gelber’s payroll. He later sent out an e-mail blast to supporters thanking them for “opting to ignore what is clearly my opponent’s attempt to distort my record, attack my character and avoid talking about substantive issues of the city.”

Fallout

The PAC is already causing fallout on the Beach. Its activities were raised at a city meeting on Wednesday when Marc Lawrence, one of the owners of the Angler’s Resort hotel, appeared before the commission.

The hotel is seeking a zoning variance at its Washington Avenue location. It contributed $15,000 to People for Better Leaders last year. Grieco sponsored the zoning item on the agenda.

At the meeting, Commissioner Ricky Arriola asked the purpose of the donation. Lawrence replied that he did not know anything about the donation or how it happened.

A corporate affiliate of the hotel’s management company, San Francisco-based Kimpton Group, made the donation. Kimpton did not respond to a request for comment.

IT SMELLS LIKE QUID PRO QUO.

Ricky Arriola

Arriola said he would not support the project of any donor to the PAC until it was clear who was behind it and why it was raising money. While Mayor Philip Levine and Commissioner Joy Malakoff expressed similar concerns, Commissioner Kristen Rosen Gonzalez questioned their stance.

“Why are we being mean like this?” she asked. The hotel doesn’t “need to suffer because of any interpersonal conflict you guys are having with Grieco. … Why don’t you guys just put on some gloves and go at it outside?”

Several of the PAC’s other donors also have business before the city.

“It smells like quid pro quo,” Arriola later told the Herald. “That’s why we ban these kinds of donations.”

The City of Miami Beach has been waging war on the annual descent of hip hopping, pants-down gangsta rappers and their followers onto the beach every Memorial Day weekend for more than a decade.

The event is a derivative of the outrageous “Freaknik” celebration Atlanta managed to eradicate some years ago simply by towing cars moving at less than five mph. The anecdotal horrors there are legendary, including narratives of how young girls were raped on the hoods of cars to the cheers of the crowds. Freaknik wound up on South Beach, and was renamed Black Week. Then, to avoid racist overtones, it was dubbed Urban Beach Week. Despite the fact that the majority of the attendees have been law-abiding, the bad apples turned it into a massive, disrespectful, and frightening racist event.

The high hopes of the city’s generals for peace, especially Mayor Philip Levine and Commissioner Michael Grieco, were punctuated this year by a murder over a parking space, a related police shooting leaving one man dead, shots fired into a taxi van, and a seaside melee where one celebrant stabbed another with a broken bottle.

Michael Grieco was especially crestfallen. His strategy to diminish the pernicious influence of Urban Beach Week by calling in the Air Force and Navy in the form of the glorious ‘Air and Sea Show,’ which he sponsored and got passed by the City Commission, seemed to have failed albeit the roaring fighter jets flying upside down and doing loop de loops over the beach were indeed impressive and reminded everyone of the real meaning of Memorial Day. Outraged by the crime reports, the criminal defense lawyer and former prosecutor said there would be no more Urban Week on the beach, and threatened to have bars and restaurants shut down at 5 pm for the last two weeks of May in coming years.

Philip Levine, who happens to be a self-made man who rose from hawking tours on ships to an untold fortune, called a press conference, where he proposed a more moderate solution to Urban Week, banning liquor sales after 2 am on and near Ocean Drive. He indicated he had little respect for inherited fortune when he responded to the shouts of the owner of a belly dancing night club on Ocean Drive that the mayor should have respect for the industry that created the South Beach cache. The mayor shouted back to the effect that the club owner was the only business bellyaching, only because he would lose revenue if he did not stay open until 5 am as usual, and that he should try building a business from scratch instead of inheriting one and being stupid about the meaning of branding.

Now the de facto strong mayor and his commission majority have already managed to roll back drinking on sidewalk cafes to 2 am. A ban on sales both inside and outside Ocean Drive facilities might drive problem drinkers to other areas of the city, so the ban should be citywide. And if alcohol is the cause of trouble in general, why not make it midnight? Why not ten? Why not just have a dry city?

The mayor’s critics may cut him a break since he has decided not to run for reelection and they will soon not have him to kick around anymore. He has a legitimate concern with branding, and branding has been part of his successful business. ‘South Beach’ is in fact a brand name created just a few years ago although the daughter of one of the founders of Miami Beach used the name to denote the south end of the beach. The culture has changed over the years as the Anglo-Saxon population became mixed with Jews and Hispanics, and the brand has followed suit.

Blacks were not supposed to be on the beach after dark in the late 60s and early 70s; some were clubbed by cops for overstaying their welcome. There was a time when Jews were limited to the ghetto now called ‘South Pointe.’ When Cubans arrived in droves, signs could be seen that read, ‘For Rent – No Spics.’ The beach was blighted or suffered the doldrums at times for one reason or another, but it is crowded now, traffic is horrendous, real estate prices are sky high; the mayor’s inferiors, who have utterly failed to build their own businesses and get rich, are being squeezed out. And the mayor, who was supposed to get lots of credit for saving the city from the Great Flood with new pumps and road-raising as every cubic foot of remaining space was being over-developed by his fellow devleopers, is naturally blamed for the city’s ills.

Police Chief Daniel Oates made the only scientific remark at the press conference. He noted that the number of arrests were only half of those last year. That may well be because the crowd was smaller, but a smaller crowd does not necessarily mean well behaved. According to an employee of a Washington Avenue liquor store in the shooting zone this year, “the people were fewer but there were more bad apples.”

What Chief Oates knows is that, even with the best policing, a bomber may blow up your plans. You may make a good statistical guess at the number of minor crimes that will occur during an event, for those are many, but it is impossible to predict in any given year how many murders there will be, especially over parking spaces, for they are few in number if any at all in any given year and are not necessarily related to an event. That is, an argument over a parking space resulting in a shooting is a random or chance event that may occur despite the occasion for a particular event, and may happen on a normal day when some otherwise respectable person gets angry and loses his mind.

That the shooter who caused this body count was a 19-year-old rapper from Brooklyn with friends in a white Mercedes with New York tags down here to perform north of South Beach may be coincidental. Finding parking on Ocean Drive is not easy on normal weekends, and lots of nice people in Florida have guns because Florida is a dangerous place what with so many guns around. Gang bangers abound in South Florida urban areas, and they like to bring their guns and knives wherever they go, including South Beach. A shooting or knifing or two on South Beach ever so often is the norm. Should we blame whatever event that brings people to town for a random shooting?

True, disinhibiting alcohol is the cause of a great deal of trouble whenever it is served, and having a few drinks on Memorial Day Weekend is all the rage. There is a reason armies used to provide prodigious daily alcohol rations to troops; it helped them deal with the horrors of war. Jets roaring overhead inspired persons remembering brave warriors this Memorial Day. It made them feel powerful. Alcohol augments that feeling.

Certain “urban” areas of Chicago have become a war zone; violent crime spikes in those areas on Memorial Day Weekend, reaching a new high this weekend with a body count far higher than South Beach. The key to understanding Urban Beach Week is the socio-cultural meaning of “urban” and the anti-authoritarian celebration of violence of its music.

Philip Levine is right about having the right brand, but no matter how righteous it might be, he is waging a losing war against the very urbanism he has been promoting with advocacy of mass transportation from mainland Miami to the beach. Miami happens to be almost as urban as you can get, and it might not be long until his wealthy peers go elsewhere as the beach is urbanized.

Curbing liquor sales by two or three hours will have negligible effect. That assessment may be wrong, but where are the statistics during this prolonged battle for truncated hours, that the murderers were drinking at a particular place on Ocean Drive after 2 am before shooting someone, and that they had come to South Beach because the bars were open until 5 am? Where are the statistics that strongly indicate that more murderers come to South Beach for Urban Beach Week?

Never mind, killers or not, residents do not like Urban Beach Week because they are disrespected at that time, and many cheered when police officers fired 116 bullets into Raymond Herisse’s car in 2011, with 16 of those bullets striking him dead. That was the Tipping Point. Barriers to a replay were set up, crowds diminished, this year the beach had a more salt-and-pepper crowd as real Memorial Day events were promoted; and now this: two dead, one stabbed—not bad actually.

What we have here in the blaming of restaurant hours is the attribution of effects to a wrong cause. It’s not the restaurants, it’s not the hours during which alcohol is sold, it’s the culture, “stupid.” Well, people are not as stupid as it might seem. They just do not know how to stop the violence because it is rooted in the fabric of our society and human nature.

Protecting the residential areas with barriers, checkpoints with license plate readers, running cars in a circle, crawling the area with cops, calling in the Army and Navy—all that helps in one way or another, but there are still going to be shootings from time to time.

Thanks for all that security, dear city officials and police officers. It was not so bad this year. Cry not in your beer, Commissioner Grieco, we loved the Air and Sea Show. Relax, Mayor Levine, you have our sympathies. Maybe Urban Beach Week will go to another area, or we can all get together and sing America the Beautiful next year.

Somehow we must stop the violence within ourselves, wager the Inner Jihad, before all hell breaks loose. Let us not kid ourselves about the truth of the matter, and what we must teach at home and in schools lest our decadent nation disintegrates and winds up in the proverbial dustbin of history sooner than expected.

MIAMI HERALD BAKES A FAREWELL CAKE FOR MAYOR PHILIP LEVINE

“MIAMI BEACH Bribery attempts drop, but they still happen,” declaimed the headline at the top of the front page yesterday.

That was followed by the subheading: “A survey reveals that 22 percent of Miami Beach public employees say they’ve been offered a bribe at some point in their career.” The employees were not asked if they accepted bribes. Pray tell.

That percentage does not jibe with a subsequent statement about the December 2016 survey that of “218 employees in departments most likely to be targets of bribery… 100 reported having been offered a bribe as some time in their career.”

Well, 100 divided by 218 is 45.9 percent, not 22 percent, but never mind that because the timing of “sometime” makes meaningful comparison impossible, and so does the rest of an incomplete hodgepodge of statistics from several years of surveys instead of a straightforward table of side-by-side statistics for all categories.

The employees were not asked if they accepted bribes, and the report does not say whether employees who said they received offers were asked to identify the persons who offered the bribes so an attempt could be made to corroborate their statements or law enforcement alerted to keep an eye on them.

Of course there is a difference between a free lunch and a cash donation, and lunch will probably be declined.

What is clear is that the report takes the cake, that it is a liberal propaganda piece bidding Mayor Philip Levine—a wealthy media mogul who was himself disgraced for soliciting campaign contributions from developers of city properties—farewell forever because his political career has been washed up with the defeat of his great friend Hillary Clinton.

The “Get It Done” mayor’s vainglorious demeanor and censorious conduct alienated honest reporters to begin with. What followed turned many of his followers against him, although he certainly is not to blame for everything that has gone wrong.

Exposure of public corruption is improbable because the parties to it are unlikely to confess to it unless someone rats them out or law enforcement gets something else on them and offers them a deal.

The administration has made that more difficult, for example, with its software upgrades, making it inconvenient for delators to confidentially access online building permit and inspection records, requiring them to identify themselves and obtain permission from the owners. And that is not all to show that the often advertised “increased transparency” is a canard in respect to some crucial records.

The administration has also replaced municipal magistrates or “special masters” who hear code violation cases with virtual stooges who provide no meaningful review for the discriminatory policymakers who are their masters.

The city has in the past refused to adopt a county whistleblower ordinance to encourage informers to come forward.

The county ethics commission, a retirement farm for prosecutors, is a joke on Miami Beach taxpayers despite its randomly correct findings. Just prior to the last wave of arrests, its director, Joe Centorino aka “Sleeping Joe” declared at a meeting with bloggers that Miami Beach had cleaned itself up, and when a reporter noted that, bullied him by email. The Miami Herald has ignored numerous reports of inadequacy of that commission as well as allegations of Miami Beach corruption, not to mention the commission’s egregious violation of public disclosure law when its commissioners were filmed whispering behind folders at a meeting.

The result of the ethics commission’s recent “investigation” into allegations made by one Antonio Halabi damned the commission to infamy for its lack of due process: the commission forwarded his allegations, including evidence that the city manager had raised himself above the law, to city officials. The accused naturally responded in the negative; the commission took their word for it and dismissed the case without offering Mr. Halabi an opportunity for rebuttal.

That is not all that demonstrates the incompetence and selective enforcement of the ethics commission and the bullying attitude of its director when his investigations are criticized.

Now here we have another condignly unbalanced report from the Miami Herald, representing the so-called fourth branch of government that is in actually part of the real fourth branch, the bureaucracy, posing as news in a way that suits the very definition of “fake news,” false inferences from survey facts that do not really indicate facts at all.

The city is congratulated for taking an expensive ethics course run by the county ethics commission, a notion that was scoffed at by the likes of Commissioner Ed Tobin, because even a moron knows what corruption is. Or maybe not, because when wrong is done long enough, wrong seems right.

Mayor Levine and the majority of commissioners he sponsored waived the city’s ethics requirements so that Commissioner Tobin could apply for the police job while sitting on the commission. Levine lauded Tobin, and said he would like to similarly waive the ethics code for himself. But when the commissioner crossed him, he accused him of being unethical, leaving us to wonder why the commissioner failed to pass the ethics test given under the purview of the mayor’s new police chief, forcing him to get at police officer job on the mainland with the City of Miami,

Mr. Levine may be one of the most ethically challenged mayors to sit on the dais since the notorious Mayor Alex Daoud. Just for example, millions were paid by the city for the air rights above the Sunset Harbour shopping center owned beneficially by him and his great friend and partner Scott Robins, and then, while mayor, he attempted to push through zoning to his advantage; the ludicrous premise handed down by the state ethics commission was that the advantage to him would not be immediate. This time, however, the county ethics commission did not put its nose where there is no sunshine.

The city also is applauded for the allegedly improved morale of its employees, who “felt” they have better whistleblower protection. The mayor naturally “thinks” there has been “a tremendous change in culture” under his tenure.

Please “think” and “feel” again, because thinking in itself is not knowing, neither are self-congratulatory feelings.

Critical thinking is indeed useful, so think again about what deposed Mayor Matti Bower said after Mr. Levine was crowned a strong mayor over his court of faux reformers as his prime minister bragged about the number of people fired, leaving key people around in honey pots such as the problematic Building and Code Enforcement departments for years, yet now saying key staffers were replaced.

City workers, averred Madame Bower, a grandmotherly politician who was friendly with scores of employees, reported they said they had been cowed by the new regime. That is, fear and intimidation was the rule.

We all know the corporate drill: you had better have a good attitude and be positive about us or you had better find another job.

Here is something else to “think” about: The “indicative” statistics quoted by the Miami Herald are meaningless in terms of “indicating” facts. South Florida is by virtue of its Third World influences perhaps the most corrupt region in the United States. Federal law enforcement is charged with curbing corruption of the local, county and state police power in all departments, but with a deliberately limited staff. Economists have even declared that a certain degree of corruption is good for business. Republicans led by President Trump may desire to cut the FBI staff in half. Miami Beach is a drop in the bucket. Arrests there come in intermittent waves as a handful of investigators work priorities from place to place. When Miami Beach is hit, corruption may decline for awhile, and lessons are learned as to how to avoid detection.

Now the Miami Herald also reports that the $3.5 million recently plundered from city coffers, an event that led to the departure of finance department staff, “remains unsolved and under investigation.”

The mayor’s wealth sidekick on the dais, Commission Rick Arriola, told the Huffington Post that the matter is under investigation, that the city will get back every penny. and that “audits are the responsibility of the city’s outside auditors and the city’s CFO.”

What a ridiculous statement that is, for the problem is that the finance department and auditors did not bother for ages to reconcile cash balance on books to cash in bank, a routine bookkeeping procedure.

Mr. Arriola would surely fire his controller and bookkeepers for failing to detect the imbalance in a month if not in a day given the modern software relations between banks and their clients. Since he is so sure of recovery, he should personally guarantee it, as the amount is rather miniscule for him given his good fortune.

By the way, the attack pieces of the Huffington Post were so imbalanced that I was tempted to rebut them and give the mayor some little credit for the hundreds of millions allocated for the war against global warming. At least we are not wading around in knee-deep water in South Beach.

Yet it is high time that a major media outlet took the mayor and his ilk to task despite more threats of SLAPP libel suits. It is safer to do so now that his great friend Hillary Clinton has gone down in flames.

But the Miami Herald must “feel” sorry for the mayor, and “think” that it has a duty to boost from time to time the official sources needed bolster its sales. Therefore we have this astonishing farewell cake baked for Mayor Philip Levine

CITY OF MIAMI BEACH SHUTS DOWN ONLINE BUILDING PERMIT SEARCH FOR GENERAL PUBLIC AND HINDERS ACCESS TO RECORDS BY REQUIRING PUBLIC RECORD REQUESTS AND FEES AS A RESULT OF EMBARASSING DISCOVERIES BY PUBLIC INFORMERS

“CAN I VIEW PERMIT HISTORY ONLINE?Permits issued for any property in the City of Miami Beach from 1990 to 04/26/2016 are available through Velocity Hall Online Permitting.

Note: If you are not either the owner, contractor, engineer, architect or owner representative, you will not be able to register at the Citizen Access Portal and therefore; may submit a public records request to the Building Department’s Records Management Section. Click here to download the Records Request Form

“There are an infinite number of possible cities, of which this one happens to be necessary and therefore the best because it has been intelligently chosen. It is the optimum city,” pronounced my interlocutor, who had engaged me in conversation at Terranova’s Big Reveal Block Party. He was a blue-eyed blonde decked out in orange shoes, green pants and an orange shirt.

“Pray tell, by whom was it chosen?”

“It was chosen by The Hundred Jews.”

“Who are They?”

“They are the secret masters of the material world,” he declared in a conspiratorial tone, giving me cause to believe he was yet another South Beach nutcase. Madame Blavatsky would spin in her grave.

“Is Terranova’s Stephen Bittel one of them?”

“I cannot say.”

“He seems to believe that the world is an orange,” I said, having decided to go along with his nonsense while Beatrice was getting another round of mojitos.

“Orange is the optimistic color. Orange encourages us to aspire to be the best, to take risks, to compete with one another to make this the best of all possible cities in the best of all possible worlds.”

“I thought you said this was already the best of all the possibilities.”

“It is, indeed, the best if all cities that presently exist, and of all possible cities at this time, but the world does not stand still for our city, therefore The Hundred Jews had to save it from the Great Flood at the last election. Jews now control the commission, and Cubans run the city as usual.”

“What? Does the best of all possible cities proceed on a racist agenda?”

“It is not racist at all. In fact, it is racial harmony at its optimum material composition. More potassium was needed on the commission.”

“Potassium?”

“Yes, Cuban-American physiology has not completely rebounded from the potassium shortage suffered when sugar cane was favored over bananas in Cuba. Former Mayor Herrera Bower, for example, was quite lightheaded, fatigued, and spasmodic at times, as was former Commissioner Michael Gongora. They are presently eating a high orange diet and have subscribed to the Orange Theory. They are expected to recover in about three years.”

“I see. That makes sense, but why have Cubans run the city if they are that way?”

“They do not all suffer from Hypokalaemia. They more than anyone understand the necessity of dictatorship. Therefore they cherish our strong city manager charter. Besides, considerable negligence and erratic behavior in government does people a lot of good. And other Latinos with a banana-rich heritage offset the deficiencies.”

“Well, that makes sense too. Still, if the City of Miami Beach is the best of all possible cities, why does it seem to be more like a ghetto every day, with the rich getting richer, and the poor getting poorer? Just look at the misery on the streets and in the parks.”

“Are you so miserable?”

“No,” I averred, “not as miserable as the increasing number of vagrants squatting in doorways and parks. I still am miserable in my own way. That I know not what I want, is the cause of my complaint: if I had any known want, I should have a certain wish; that wish would excite endeavour. When I see people pursuing one thing or another, I fancy that I should be happy if I had something to pursue. But, possessing all that I can want, although that is poverty to most people, I find one day and one hour exactly like another, except that the latter is still more tedious than the former.”

“You are among the very few who have openly complained of misery in our happy city. Your complaints have no real cause. You should know from the misery that you see that you should highly value your present state because you are better off, and to be better off than others is the meaning of life to be pursued in the best of all possible cities.”

“The very sight of these miseries should give you something to desire,” he continued, “and that is why the police chief pulled off the sidewalk foot patrols, so that people can see how well off they really are in this best of all possible cities. Vagrants are even placed at the entrance to the city to encourage us all to maintain the status of our city as the best of all possible cities.”

“Yes,” I said, simulating increasing enthusiasm, “I should love to see poverty, the pregnant women sleeping soundly the park, and the joy that homeless people find in getting drunk.”

“The more of that the better,” said he, “to prove by way of contrast that this is the best of all possible cities. Great good cannot be had without great evil.”

“You know, ads should be placed in the papers and homeless people bussed in to further illustrate the wonders of the City of Miami Beach. I remember a commissioner said that is what tourists come here to see, what makes the city so colorful.”

“You’ve got the picture. You have something to be happy about!”

“By golly, I thank my lucky stars! I have shelter, my own bed, a pot to pee in, all for only 80% of my income. My best local friend dumped me because she said I am a loser, but she should have realized that I am a successful loser at least!”

“Thank the new city manager, the new mayor, the city commissioners, not your lucky stars, and thank the organization of selfishness that creates the conditions that make the best of all possible cities possible.”

“I shall do just that. And thank you for restoring my confidence in the leadership and my eagerness to follow the Big Plan. Perhaps Terranova will offer me a public relations job. Now excuse me, I must find my friend now.”

MIAMI BEACH HOTEL APARTMENT OWNER ACCUSES CITY ATTORNEYS OF DISHONESTY AND FRAUD ON THE COURT

June 20, 2015

By David Arthur Walters

PRESS INDEPENDENT

Rod Eisenberg, owner of the historic 80-year old Sadigo Court Apartment Hotel in South Beach, accused City of Miami Beach attorneys in a June 4, 2015 filing in federal court of dishonesty; to wit, of making blatant and gross misrepresentations and brazenly false arguments supported by convenient cutting and pasting together of statutes as part of a massive scheme to deceive, mislead and defraud the courts where he had lodged complaints to defend his property and his civil rights after city officials conspired to throw his guests onto the street, close his apartment hotel, and subject him to false arrest because he refused to voluntarily install fire sprinklers that were not really required for his historic structure.

His previous filings asserted that he was persecuted by the city in retaliation for 1) his exposure of corrupt practices in the early 1990s, and 2) for his complaints about non-enforcement of code provisions in respect to blight in his neighborhood, and 3) for failing to bribe code enforcement officers.

Eisenberg discovered that the city’s bid selection process was corrupt in 1993 after bidding to rent space at the old city hall building for a Welcome Center. That motivated him to take city officials to task on other matters.

He learned the winning bidder was receiving free rent in the Old City Hall during the bid challenge. He also discovered a City commissioner and his son had received what amounted to an illegal brokerage commission on a $10 million real estate transaction. He subsequently embarrassed city officials by disclosing his findings to the media.

As a result of those disclosures and his lawsuit against the city, a scandal ensued that ultimately led to the city manager resigning, and the city attorney being forced out. Some of the current city attorneys including City Attorney Raul Aguila were involved in that case. I have examined Raul Aguila representation of the city in other matters, and found him to be quite fair in comparison to his predecessor, Jose Smith, who seemed to believe that the city was not the community but the ruling regime, and indeed acted like he was the city itself, although he was right more times than he was wrong—he was nicknamed “The Magic Eight Ball.” So Aguila’s stance in the Eisenberg Affair astonished me.

Furthermore, the discovery process Eisenberg brought against the city back then revealed apparent hanky panky between city officials and an officer of IRAMCO, the broker involved in City of Miami Beach Redevelopment Agency’s purchase of land for the development of the city’s first convention hotel, now Loews Hotel at 1601 Collins Avenue.

Between 2004 and 2009, Plaintiffs and others in the neighborhood voiced many complaints about the health and safety risks and Code compliance violations of an abandoned hotel in the neighborhood. The City investigated some of those complaints but did not resolve the problems with the building.

In December 2011, fifteen police offers, ten code enforcement officers, including Jose Alberto, and five fire officials forcibly shut down the Sadigo for a second time for allegedly violating city fire codes for refusing to install fire sprinklers in the three-story structure. Yet Les Beilinson, a renowned architect and historic preservationist, called the Sadigo “one of the safest buildings I have ever been in” during a 2010 Task Force hearing.

The shut down occurred while the Sadigo was hosting the ‘Pool Art Fair’ during the Art Basel Miami Beach art show, forcing guests to vacate the premises within the hour. Jose Alberto, later convicted and imprisoned for corruption elsewhere, allegedly offered to solve Eisenberg’s problems by using his people, insinuating a bribe would be due from Eisenberg. I estimate from information of past incidents the handling fees might have amounted to $500 for six people, or $3,000. When Eisenberg refused by stating he already had legal counsel working on the matter, Alberto allegedly stated that Eisenberg would not get far using legal means. Eisenberg was then arrested. In April 2012, Alberto and other code compliance officers and fire department inspectors were arrested for bribes they accepted in June 2011.

Since those arrests, the Sadigo has not received any further code compliance notices or violations, according to a recent brief filed in the federal case; however, a $400,000 lien was filed against the property for a fine accruing at $500 a day. Eisenberg has laid out an estimated $450,000 in attorney fees and is being sued for another $200,000 in fees he refuses to pay his attorneys for losing the case. The loss in revenue from the extended closure of the hotel along with damage to his reputation may amount to another $1,000,000. Now that the federal judge had summarily dismissed the case, ensuring that his complaints will never be heard by a jury, the city has filed what appears to be a patently frivolous motion for sanctions for an amazing $800,000 in legal fees and costs for taking him to hell and back, refusing at all times to compromise with his attorneys.

Eisenberg is no slouch when it comes to the practice of law. He trained as an attorney. He did not apply for a license, apparently because he eventually believed the profession is essentially unethical. The allegations he has brought pro se in response to the city’s motion for around $800,000 sanctions indicts not only the city attorneys but his own attorneys as well. He claimed that they colluded wittingly or unwittingly to keep the case going in order to use him as an ATM machine.

“Although there is no guarantee of success in civil litigation, a plaintiff must be certain his attorneys are not succumbing to the City’s arguments because they would rather treat their client like an ATM, rather than vigorously advocate their client’s positions. Opposing counsel points out that plaintiff had so many lawyers and he still lost every time. And although this may be true, the reason is every lawyer, except one or two, had the propensity to do things harmful to the client, while remarkably always beneficial to the City.”

In retrospect, it is astonishing that the city attorneys, blessed by the city commission, would lay out $800,000 in taxpayer money to persecute this businessman instead of negotiating a compromise. And now they expect to bring the owner of this safe little three-story hotel to ruin by forcing him to pay for their destructive maneuvers. Why, their motion to sanction fees and costs is itself frivolous, supported by a spurious argument that his suit against the city was frivolous because he lost it as a consequence of their malevolent machinations.

We like to believe that the law is as solid as a rock, that there is a very high probability that similar cases will be similarly decided. The truth of the matter is that the positive law is what judges decide from day to day, and that law is always subject to change with the excuse that it should evolve, glacially or not, with the so-called progress of civilization. Forsooth, litigation is a gamble because no one knows for sure what some judge may decide given her prejudices and institutional blindness. Controversy keeps the clock ticking for fees accruing at a rapacious $500 per hour or even more for well connected lawyers.

Judges talk about principles of law and the high ethical standards of the legal profession. In sum, the principle of lawyers is profit in a zero sum game. A law-schooled lawyer in our competitive economy is likely to become a sophist who will do his level best to make even the worst case sound like the best. Overall, the size of the war chest and not the elements of law and highfalutin ethical standards win the battles in the never ending war of all against all. Ironically, the opportunities for litigation and the hordes of attorneys available to resolve differences for a fee is said to be what makes America great.

At least Federal Judge Cecilia M. Altonaga almost brought the billing to an end with her summary rulings, exhibiting the usual prejudice in favor of governmental authority, that it should enjoy the sovereign immunity of a queen or king unless virtually impossible exceptions could be proved. There is a saying that one cannot fight city hall and win, and for good reason.

Eisenberg’s suit for recognition of his civil rights was based on the 1871 Ku Klux Klan Act. Few cases were brought, only a handful were won, and the sections of the act cited by Eisenberg’s lawyers laid dormant for many years until they became a handy instrument for harvesting civil rights controversies for fees.

The Radical Republicans back then figured that federal judges would decide independently of local prejudiced judges and juries. That might hold true if the federal judges were riding a broad circuit. Once resident in the place where cases are decided, judges inured with the local prejudices and institutional blindness of their colleagues. Face it, the judge is more likely to sit with her public attorney kin in the lunchrooms. At least she is prone to sympathizing with them because they are constantly under attack for their decisions. And Judge Altonaga is a human being first of all; she is no stranger to South Florida. Its dominating Cuban?American community wanted to see her sitting on the United States Supreme Court. She was reportedly on President George W. Bush’s short list for the nomination.

Eisenberg’s motion against the sanctions claims that his attorneys decided it would be best of focus on the weakest aspect of his case, that the city was retaliation against him for speaking freely.

That would be sexier, they thought, than emphasizing his strongest point that the city was discriminating against him, not affording him with the equal protection of the laws. Many apartment buildings with short term rentals were not harassed for not having fire sprinklers. Some owners had voluntarily installed sprinklers. He was being picked on.

His brief against the assessment of the city’s fees claims that his attorneys figured juries would be too stupid to understand the equal protection issue, even though, Eisenberg would argue, the issue is rather simple. But I shall provide my own analysis of relevant legal requirements instead of his KISS argument:

Chapter 509-215 of Florida’s firesafety law states that public lodging establishments of three or more stories that have interior corridors without direct access to external means of egress must install sprinklers. The three-story Sadigo does not have interior corridors; the second and third floor apartments have stairs descending to ground level. There are also stairs to the rooftop

And Chapter 509 requires that buildings up to 75-feet high that do have direct adequate external means from guest areas for escape from fire and smoke must have sprinklers if erected prior to 1983.

These provisions apply only to those public lodging establishments in a building wherein more than 50 percent of the units in the building are advertised or held out to the public as available for transient occupancy.

And there is a special exception for historic buildings. The statute refers to national fire prevention standards adopted as law by Florida that mentions systems equivalent to automatic sprinklers. Eisenberg argues that his three-story building has an adequate fire and smoke protection system, which he upgraded at a cost of $40,000 at the city’s request, and is absolutely exempted from the equivalency standard because the intention of the law for historic structures is to prevent disturbing, altering, or destroying their integrity by forcing the installation of fire sprinklers OR alternative systems equivalent to automatic fire sprinkler systems.

Eisenberg claimed that the city attorneys deliberately deceived or lied to the judge about this feature of the law, and that several experts as well as his attorneys were also deceived into becoming “shills” for the city and fire sprinkler companies. His notion that he had become an ATM machine for attorneys on both sides is supported by a June 1, 2015, Notice of Resolution discovered on the docket whereby the city attorneys had resolved their claim for fees against his attorneys, and therefore they were pursuing Eisenberg for the $800,000, despite the evidence that Eisenberg had bowed to his attorneys’ wishes that he trust them as his lawyers to present the correct theory of the case and arguments to the court. How can the court hold him alone responsible for fees to defend against frivolous and groundless arguments, if that is what they were, and not his attorneys, when he relied on their advice in the pleadings? In fact, the rule appertaining to sanctions allows the judge to hold the attorneys signing the pleadings responsible.

Right or wrong, everyone was aboard the same ship, naturally unwilling to cross the source of a great deal of bread and butter. Eisenberg, who has been called a sore loser by the press and a crybaby by city attorneys for fighting for his constitutional rights, was denied equal protection of the laws as a so-called class-of-one. In reality there are hundreds of people in that Category of One who are afraid for good reason to confront the city’s legal mafioso who are no doubt gloating over Eisenberg’s defeat.

The 80-year old Sadigo had been partially occupied by transient guests as was the custom for decades on the beach. Eisenberg had a state license for transient use and was paying resort taxes to the city. The trouble began when he pulled a permit to dedicate some space for preparation and storage of cold food for his Art Basel visitors. City inspectors then defined that space as a “restaurant” although no food was to be sold there to the general public, and reclassified it as a “new” structure. Eisenberg declined to have their guys fix the problem or impliedly pay a bribe after code enforcement insisted that the transient apartment building was a brand new hotel that would have to comply with the fire code of a new hotel instead of an existing hotel. “Transient” occupancy, which allows for two transient uses in the district, is the overriding word: The change from transient apartment to transient hotel, Eisenberg argues, was merely a change in paperwork nomenclature, both uses being allowed within the general occupancy zoning of the neighborhood. Wherefore the Sadigo could not be classified as a new building since the occupancy was essentially the same, i.e. transient.

City officials, especially the clan of city attorneys, apparently had a vendetta going against him as if he were an enemy of the state. Right or wrong, everyone but he was aboard the same ship, naturally unwilling to defy the source of a great deal of bread and butter. Wherefore he was denied equal protection of the laws as a so-called class-of-one inasmuch as only his historic building was selected out of many for specious enforcement. His attorneys, apparently believing equal protection abridgement would be hard to sell to a jury, did not have detectives go out and get comparables to show that similar buildings were allowed without sprinklers, and that he was being picked on because he did not bend over for them. He has apparently now retrieved a list of comparables on his own.

Before I was aware of the Eisenberg Affair, I myself had pointed out that a friend of Eisenberg’s, Scott Robins, an influential developer who has partnered with Mayor Philip Levine in several projects, had operated a transient hotel, the Espanola Suites on Espanola Way, above two restaurants with hot kitchens for several years, and according to the city has not paid resort taxes, after the city denied him a certificate of use. An inspection report available from his recent effort to obtain a certificate for hotel use indicates that the sprinkler system installed during a previous renovation, which may not have been permitted by the city is inadequate for the hotel use. It was only after pressing the issue with Hernan Cardeno, Director of the Code Compliance Department, that Espanola Way Suites was cited and then referred to the Special Master. No explanation was forthcoming from Cardeno was to why the hotel guests were not evicted and the owner arrested as was the case in the Eisenberg Affair. The problem with reporting violations to expose the negligence and corruption of the government is not only retaliation by the officials, but retaliation from the businesses that one would rather not offend.
<BR
In any case, Judge Altonaga tossed out Eisenberg’s equal protection argument, in her first round of dismissals in the Summary Judgment Game, for lack of the comparatives that Eisenberg’s attorneys did not collect and press.

And then she tossed the supposedly sexier free speech cause, ruling that it was moot because a principle of current common law, or how judges interpret statutes lately, is that the city itself cannot be held liable for civil rights violations unless it makes the discriminatory policies. It was subject to county review, she said.

Well, then, the problem there is that the county is subject to the state, and the state is immune pursuant to the current misinterpretation of the Eleventh Amendment to the United States Constitution. So nobody is liable.

Judge Altonaga’s institutional blindness to the fact that the city tailor made the policy to put Eisenberg out of business is profound, as can be seen by anyone who thoroughly examines the behavior of the officials concerned and fully understands the confusing hodgepodge of state statutes.

As for the policymaker concept, that is the result of the interpretive vacillations of the also fallible justices of the U.S. Supreme Court. At first it was believed the Congress back in 1871 did not intend municipalities to be “persons” subject to suit to recover damages for civil rights violations. Minds were changed about that, and may and should be changed again, so that such entities are liable for damages for their employees’ behavior, as is the case with businesses. History is again and again conveniently abused to justify current desires.

Eisenberg cited several mistakes made by his lawyers. I note that they did not sue the officers themselves along with the city, which they might have done knowing they might be confronted by sovereign immunity, which is based on the notion that “the King can do no wrong.”

But the King can do wrong, and be beheaded as a consequence. If Eisenberg is right, some heads should roll at city hall. He must have something planned. He is not talking, having learned his lesson the hard way about speaking freely.

# #

Facsimile of Document Retrieved From Public Records
Response to City’s Motion for Approximately $800,000
in City’s Legal Fees and Costs
?

IN THE UNITED STATES COURT
SOUTHERN DISTRICT OF FLORIDA
ROD EISENBERG, and EISENBERG
DEVELOPMENT CORP., a Florida
Corporation, d/b/a SADIGO COURT
APARTMENT HOTEL, Plaintiffs,

vs.

CITY OF MIAMI BEACH,
Defendant,
CASE NO.: 1:13-CV-23620-CMA

PLAINTIFF ROD EISENBERG’S RESPONSE TO DEFENDANT CITY OF MIAMI BEACH’S MOTION FOR ENTITLEMENT TO FEES, COSTS, AND SANCTIONS

“I will employ, for purposes of maintaining the causes confided in me such means only as are consistent with truth and honor, and will never seek to mislead tile judge or jury by any artifice of false statement of fact or law.. ”
Supreme Court of Florida, Oath to the Florida Bar, 2011

The Plaintiff, Rod Eisenberg, Pro se, adopts co-counsel’s Response pleading, with its memorandum of law, and files this its own Response to Defendant City of Miami Beach’s Motion for Entitlement to Fees, Costs, and Sanctions, and in support states the following:

INTRODUCTION

As shown below, it is clear and convincing that the City’s attorneys, past and present, have broken the solemn oath above and in turn denied that justice was done. Since the very beginning in 2007, when the first fire violation was posted at plaintiff s property, the City has stubbornly refused to fairly apply the laws and facts in the case of the historic Sadigo Court. Instead, they were only concerned with the end result: forcing a costly fire sprinkler system into a “contributing” historic building, which is exempt from sprinklers as a matter of law. Furthermore, the City also demanded Plaintiff go through the rigorous demands of obtaining a “new” hotel license if it wanted to sell short term rentals. And with the public coffers at their disposal, the City has spent an obscene amount of money to enforce their will.

Plaintiffs reason for going to the recent law firm, SmolkerBartlett(Smolker), are grounded in an equal protection claim that other apartment licensees are being allowed to sell short-term rentals, some with sprinklers, some without; while the Sadigo Court was being forced to obtain a new hotel license and be treated as a “new” hotel for licensing, building and fire code purposes. Correspondences between plaintiff and Smolker prior to them agreeing to represent client centered around the equal protection claim, not the free-speech claims that later engulfed the case. (see Exhibit 1) They later told client the equal protection case would be dull and boring to a jury. Instead, the free-speech angle would be interesting for a jury. They also said juries were not very intelligent as a whole to understand the complex zoning and land-use issues.

The issues in this case are very simple and upfront. The City had to embark on a scheme of smoke and mirrors in order to achieve a win at any and all cost. Their well-executed plan consisted of misrepresenting to the Court the necessity of a hotel license, when the current apartment license is good enough in a RM-2 zoning district. The City then unreasonably demanded that the “contributing” historic building be brought up to the same codes applicable for new hotel construction, which mandated fire sprinklers, as well as widening historic exterior stairwells. They argued their hands are tied because the process they deceptively labeled a “change of occupancy”, demanded it.

This City has a disturbing view of what our government is suppose to stand for. Instead of being a government of the people, by the people and for the people, this government is against its people, or at least the ones that have the moral resolve to challenge its absurd edicts, which in this case involved transient rental s and fire safety. Incredulously, this government will ask a property owner to disregard the rule of law, and only be concerned about the amount of money it will cost to fight their unwarranted demands. And since they have the public coffers, with no accountability, the City will guarantee one will spend much more money fighting them, then adhering to their unnecessary and unlawful demands.

If the facts and law do show that a sprinkler system is not actually mandated, then the City’s underhanded practices to force a historic property owner to install the unnecessary fire system would be tantamount to extortion. This Court even stated during a status hearing midway through the case that if the City got it all wrong on the sprinklers, “..that is just going to facto r into damages if your{Mr. Kairalla} assessment is incorrect.” (see Transcript of Court Hearing-7/2 l/1 4, p. 12). Due to misrepresentations by opposing counsel, this court never had the opportunity to analysis the codes, laws and facts in the case to see if indeed a sprinkler system was ever legally required for the “contributing” historic Sadigo Court.

That being said, the strong parts of plaintiff’s case, negating any talk of the action being frivolous, unreasonable or without foundation are as follows:

1) Plaintiff had given to prior counsel a list of other “comparators”, other apartment licensees selling short-term transient rentals, with or without the so-called requisite fire sprinklers, and not having to undergo a “change of occupancy” to hotel. Plaintiff/client should not be penalized for the failure of counsel to submit a list of comparators.

2) The Sadigo Court did not have to undergo a “change of occupancy” from apartment to hotel, thus triggering FFPC Ch. 28 for “new” hotels , because, if anything, the change would only be a “change of use”. That triggers FFPC Ch. 29 for “existing” hotels , which has significantly different requirements than its Ch. 28 counterpart, such as exempting existing buildings under 75 ft. from the sprinkler requirement. ( theSadigo Court is only 38 feet.)

3) City’s “Exhibit 1 &ll”, obtained through discovery in this case, both show unequivocally that opposing counsel misrepresented when he wrote to this Court there was a sprinkler mandate for all transient facilities, “without exception”. (see Exhibit 2) Opposing counsel’s shameful fear-mongering regarding possibility of guests burning in a future fire should not trump Court’s integrity that mandates it to respect the fire codes and statutes already in place that specifically exempt a building exactly like the historic Sadigo Court.

4) Notwithstanding City’s representations, Florida Statutes 509.215, the authoritative law concerning public lodging establishments and fire sprinklers, with its paragraph #4 exception for “contributing historic structures” from sprinklers, does apply to Sadigo Court. It clearly states the Historic Task Force “shall” accept the SadigoCourt’ s exception from sprinklers. Also contrary to City’s argument, the statute applies to both transient and non-transient public lodging establishments, (see F.S. 509.013(4)(a); F.S. 509.242(1) in Exhibit 11). As this Court recalls, City had been arguing that “FS 509.215 does not apply because the Sadigo was not licensed as a transient public lodging establishment prior to 1994”.

5) The validity of the numerous “Cease & Desist Orders” issued by local fire marshal prior to 2013 are null and void since the local fire marshal does not have authority to issue those orders under FS 633.161. Therefore, all those shutdowns in 2011 were invalid and City should be responsible for those damages.

ARGUMENT

I. There are Many Comparators

Plaintiffs’ case was not frivolous because Plaintiff knew there were many other apartment buildings selling short-term rentals and they were not being harassed like the Sadigo Court by calling it “an illegal hotel”. Plaintiff had even given to prior counsel that list of other “comparators”, other apartment licensees selling short-term transient rentals, with or without the so-called requisite fire sprinklers, and not having to undergo a “change of use” or a “change of occupancy” to hotel. (1)
(1)Besides the apartment licensees listed in Exhibit 2, there are many comparators selling short term rentals without sprinklers, such as the Tradewinds Apt./Hotel(2365 PineTree Dr.) European Guest House(721 Michigan Ave.) and Sobe Bed & Breakfast (1018 Jefferson Ave.) and some with sprinklers, such as the Espanola Suites (443 Espanola Dr.), Metropole Hotel(6 35 Collins Ave.), Sunbrite Apartments(1330 Penn. Ave..) BesaroSuites(255 W. 24 St.) and the Lincoln Arms (1800 James Ave.), which happens to be located in the same RM-2 district as Sadigo Court. There are also some newly renovated hotels such as the Clifton Hotel (1343 Collins Ave), Villa Italia Hotel (354 Washington Ave) selling short-term transient rentals without sprinklers. And of course, we have not even mentioned the numerous units in condos that sell short-term rentals, many that do not have sprinklers.
In other words, the Sadigo never needed a “new” certificate of occupancy for a hotel because its original apartment license is good enough in a RM-2 zoning district to sell short-term rentals. Plaintiff’s counsel in this case, Smolker Bartlett, promised to amend complaint and submit comparators at the appropriate time, however, they never did and it is still a mystery today why they did not. Plaintiff/client should not be penalized for the failure of counsel to submit a list of comparators.

For years, plaintiff had been trying to have his numerous counsels simply submit a list of other apartment licensees that sell short term rentals, but done ever did. Furthermore, no attorney ever objected to the City’s repeatedly misrepresenting the need for a hotel license when they stated to a state court judge:
“Apartment use does not allow transient utilization of the premises.” City Atty. Boksner, p. 20; “Transient would require…..to change their certificate of use as a hotel.” City Atty. Montoya, p. 45; “If he wants to operate as a transient apartment under state law, he also has to operate as a hotel under City law.” City Atty. Held, p. 47 [Transcript of Court Proceedings dated 6/30/11, Eisenberg v. City of Miami Beach, Case No. 11-20234 CA 22. {(App’x II Ex. 9) ECF No. 53-9}]
On June 27, 2011, City gave code compliance violation CE # 11010866- “Correct BTR is for apartments. Owner is utilizing the property as a hotel with transient short-term rentals.”. Clearly in this case and in every other related case, the City does not want to acknowledge the existence of local apartment licensees(BTR #900) that legally operate transient short-term rentals.

Inexplicably, the City has destroyed its credibility by representing that apartment licensees are not allowed to sell short term rentals.

The City also has argued that the Sadigo Court without fire sprinklers is a “imminent danger”. If that were true then why would the late renowned architect, Les Beilinson, a historic specialist, state at a Aug. 19th, 2010 Task Force hearing that: “the Sadigo Court is one of the safest buildings I have ever been in”. If the sprinkler requirement were true, you would not have multiple state DBPR inspectors pass the Sadigo and note in their Lodging Inspection Reports that sprinklers are not applicable. (see Exhibit 16) The City fire marshal has told the plaintiff on many occasions that “the only reason your experts agree with you is because you pay them”, This warped cynicism should not diminish the solid foundation of plaintiff’s case built on expert fire-engineer testimony, fire codes and statutes.

II. It’s a “Change of Use”, not a “Change of Occupancy”

Plaintiff thought the foundation of his case was solid because apartments have a “vested” right to sell short- term rentals in Sadigo’ s RM-2 district. However, if the tribunals think the Sadigo has to be a “hotel, ” then the process is only a “change of use”. That label has beneficial ramifications on the Sadigo Court’s sprinkler issue because “changes of use” trigger FFPC, Ch. 29, and Ch. 29 exempts existing hotel-like structures under 75 feet. The Sadigo is under 38 ft. As proof, the FFPC, Ch. 43.7.1 states: “A change in use that does not involve a change of occupancy shall comply with the requirements applicable to the new use{hotel} in accordance with the applicable existing occupancy chapter {i.e. , Ch. 29}……. ”

Opposing counsel also argues that plaintiff also lost his malpractice case against the original law firm who agreed with the fire marshal that Sadigo Court needed sprinklers. However, the judge in that case tangentially ruled that the process is a “change of use”, having repeated the phrase 7 times in his order. (see Exhibit 5-0rder dated 6/2/14) Opposing counsel cannot have it both ways: He cannot bring in the legal malpractice Order against plaintiff, and still argue it’s a “change of occupancy”. Labels do matter. In fact, it is important to realize that in the January 22, 2014 hearing before this judge, opposing counsel alluded to the change from apartment to hotel as a “change in use”, or “that new use….” ; “another type of use…. “; “change from one use….to another use…..”. Notice how opposing counsel does not mention the word “occupancy” when discussing the process because he knows, as all the experts know, that the change, if anything, is just a “change of use”.

If labels don’t matter, then why would opposing counsel surreptitiously recast the phrase “change of use” to now being a “change of occupancy” later in the case? As discussed above, the answer lies in the fact that “changes of use” exempt existing hotels under 75 feet. as per FFPC, Ch. 29. Instead of acknowledging this innocuous fact, opposing counsel has used its vast financial resources to make it appear it is a “change of occupancy” and then arguing that FFPC, Ch. 28 applies because Sadigo Court must be treated like a “newly” constructed hotel in the eyes of the fire code. This is absolutely false, as the City’s own “Exhibit I ” shows many times the process being a “change of use”. (see Exhibit 2)

Although plaintiff’s counsel originally argued there was neither a change of use, nor a change of occupancy, it is strange and unexplainable why Plaintiff s counsel would, toward the end of case, now advise their client that Sadigo now has to undergo a “Change of Occupancy” to a hotel. (see Exhibit 3- Cremer email dated 10/29/14).

This is particularly unsettling because the City’s expert, SLS Consulting, Inc., the City’s Exhibit 1, which list at least 12 examples of “change of use”, and a Miami Dade County Letter all point to the process, if necessary , being a “change of use”. (see Exhibit 4)

Despite all the evidence above that shows the process, if anything is a “change of use”, the City success fully branded the Sadigo’s process as a “change of occupancy” in all the Task Force, BORA as well as in the most recent Fire Appeals Board hearing. (3 City’s Verified Response, Miami Dade Fire Appeals Board , p.2, 8/2/14) The reason why those results should not count and the reason why petitioner/plaintiff had to withdraw his petition every time is due to the fact that the false “change of occupancy” label was accepted by these tribunals without any open discussion or input from other parties.

III. Florida Statutes 509.215(4) Should Apply to Sadigo Court

Plaintiff s actions were not frivolous nor unreasonable because there is a statute directly on point that should have cleared Sadigo Court from sprinklers, if we are to read these statutes in their plain and obvious meaning. As noted above, the original DBPR hotel inspector, as well as a subsequent inspector, passed the Sadigo Court concerning sprinklers, writing, “N/A” and/or “Yes” on the line-item for compliance. [see both DBPR, Division of Hotels, Lodging Inspection Reports dated 7/10/08 and 5/13/10 (Exhibit 16)] They freely passed Sadigo because they knew all “contributing” historic buildings like the Sadigo Court are exempt from sprinklers as a matter of law, as per 509.215(4). That has been the law of the land since 1983. So it is misleading to say no one ever agreed with Sadigo on the issue of fire sprinklers.

As City’s Exhibit 1 & 2 shows, there are other establishments that are allowed to sell short-term rentals without sprinklers because of the exceptions dictated in F.S. 509.215(1) & (2). However, the Sadigo is not allowed to use the 4th paragraph, written to exempt certain types of historic buildings. One of the reasons the City argues that point is because the Task Force never approved of its petition for exemption from sprinklers. This is a gross misrepresentation of what the role of the Task Force is.

Paragraph #4 of F.S. 509.2 15 mandates: “In attempting to discern legislative intent, we first look to the actual language used in the statute”. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000); accord BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287,289 (Fla.2003). “When the statute is clear and unambiguous, courts will not look behind the statute ‘s plain language for legislative intent or resort to rules of statutory construction to ascertain intent”. See Lee County Elec. Coop..Inc. v. Jacobs, 820 So.2d 297, 303 (Fla.2002). “In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent “. See State v. Burris, 875 So.2d 408, 410 (Fla.2004). When the statutory language is clear, “courts have no occasion to resort to rules of construction – they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power .”Nicoll v. Baker, 668 So.2d 989, 990-9 1 (Fla.1996)
“Special exception to the [sprinkler] provision shall be made for contributing historic structures ……..When recommending alternative systems {to a sprinkler system}, the task force shall consider systems which would not disturb , destroy, or alter the integrity of such historic structures .”
No where does this imply that the Task Force has leeway to approve or disapprove of the exception. Instead, it makes it mandatory for the fire tribunals to accept the “exception” from sprinklers and to recommend alternative systems to a sprinkler system that meet the intent of the NFPA- something they have failed to do in 3 Task Force Hearings, a BORA hearing and/or a Fire Appeals Board hearing. Since the language is so clear and unambiguous, the case law cited [above] does not permit any fire official, nor this Court, to abuse their given right to interpret and instead create new law.

The City is rewriting the Task Force’s mandate without any legislative authority. In other words, if opposing counsel does not like what a statute says, he will just make something up, ala Brian Williams. For example, in the Fire Appeals Board case the City further embellishes its misrepresentation of the law by arguing 509.215 only applies to “transient” facilities licensed before 1994, notwithstanding the law defines a public lodging establishment, as either “transient” or “non-transient” . Opposing counsel then reasons that since Sadigo Court did not get its state transient license until 2008, then 509.215 does not apply. According to the City, the authority for this strange interpretation is a former fire marshal who is no longer employed with the City and a SFM declaratory statement that does not apply to historic buildings, which the Sadigo Court is. The declaratory statement has been overturned by the enactment of FFPC 28.3.5, which does exempt new 3 & 4 story hotels from sprinklers with exterior walkways. Thus, as a matter of law, there is no universal sprinkler mandate, rather just a massive scheme to deceive this Court into thinking there was one.

This Court has previously warned opposing counsel to stop making statements about the correct statutory interpretation s without citing any authority regarding those interpretations. (see Order dated 3/3/14, p. 10, footnote #5)

It appears opposing counsel is cutting and pasting statutes together to create a new statute that fits their needs. The Canons of the Florida Bar, 4-3.3, do not allow officers of the Court to cut and paste statute sections together and pass them off as genuine. Opposing counsel cuts the phrase “transient only” from the Uniform Fire-Safety Standards, F.S. 633.022(1)(b), which only does apply to transient public lodging establishments.

[Opposing counsel does cite In The Matter Of Sonia Machen, Case No.1 05114-09-FM for the proposition that FS 509.215(1)(2) does not apply to Sadigo Court. However, the Statement does say that: “All buildings that are not within those parameters are required to meet Ch. 633…. ” (Id, p. 13) As we now know, F.S. 633 is the FFPC, which is then only Ch. 29, not 28 and Ch. 29 exempts all existing buildings like the Sadigo under 75 feet. So even using the Machen Statement, the Sadigo satisfies it by satisfying FFPC, Ch. 29. Furthermore, on p. 1 of the Dec. Statement it states: “If any of the facts asserted by the Petitioner [fire marshal] are untrue or materially incomplete, the conclusions of the Declaratory Statement could be significantly different. ” The fact that this statement mentions the word “historic” zero times, it is clear that this statement does not apply to historic buildings. Machen failed to account for the historic status of the structure in her analysis and thus should invalidate the use of this statement.]

Opposing counsel then extrapolates the “before 1994” date from F.S. 633.022(2)(b), which allows the local authority to require more strict sprinkler requirements for those buildings built after Jan. 1, 1994, only if a special local sprinkler ordinance is passed. [The City has never passed such an ordinance, thus the Florida Fire Prevention Code is the Uniform Fire-Safety Standard for the state of Florida, as well as the City of Miami Beach. (see F.S. 633.0215(1))] Opposing counsel has then blended these phrases together in their interpretation of FS 509.215.

This cutting and pasting of statutes and representing them as whole in a federal court case has substantially interfered with this Court’s ability to adjudicate the matter fairly. This Court has trusted opposing counsel and that trust has been broken by this unauthorized creation of new law designed to win the case at any and all costs, even if that cost is in the Court’s integrity and fairness in the legal system.

The Legislature has spoken on this issue of historic buildings and fire sprinklers by enacting F.S. 509.2 15(4), with its historic exception to the FS 509.215(2) general sprinkler rule mandated for buildings built before 1983. Although the AHJ does have the last say on interpretation of these codes and statutes, the AHJ does not have authority to rewrite them. The Florida Legislature has also adopted the NFPA’ s 914, Code f or Fire Protection of Historic Structures. The City does not like to talk about this codebook because it also allows historic buildings to utilize many “methods” of compliance, such as the submission of “Equivalency Reports”, in lieu of compliance with any requirement, including even sprinklers. (see NFPA 914, Ch. 8.1) Once again, the City, opposing counsel and/or this Court does not have authority to change the plain and obvious meaning of these “unambiguous” fire codes and statutes that all in one way or another, exempt a historic building just like the Sadigo Court from sprinklers. Therefore, it is the City who does not want to comply with the fire code sections and statutes that exempt the Sadigo Court. If they do not like the outcome of certain laws, then let the fire marshal lobby the State Legislature to change the laws. But for now, the fire marshal must obey the law, not re-write it.

Plaintiffs action s were not frivolous nor without foundation because the Florida Legislature has made it clear that local fire marshals are not agents of the State Fire Marshal’s Office. (see F.S. 633.118, formally 633.121) Given the enormous power and responsibility, the Legislature does not want local fire officials to have to ability to have persons arrested for fire code violations. This is exclusively reserved for the state fire marshal under the state statue 633.228(3), formally 633.161. For good reason, the Florida Legislature only wants State Fire Marshal personnel to be the ones initiating the action to arrest someone. It is general common knowledge that the further down one goes in state and local government, the more likely one is to find people holding technical jobs for which they are not sufficiently qualified by education or experience.

Knowing a local fire official, acting independently of the State Fire Marshal’s Office, could not have the plaintiff arrested for violating local fire dept. “Notices of Violations”, the fire marshal conspired with other local fire marshals to come up with a plan to have plaintiff arrested. (see Exhibit 6- Machen email dated 9/16/1 I-obtained in discovery from City) That conversation resulted in City Fire Marshal continually citing F.S. 633.228 (formerly 633.161) and issuing many “Cease & Desist Orders” pursuant to it, which does allow violators to be arrested. (see FS 633.124) However, the facts show, as evidenced by the email chain, all those knew the authority to “issue” would not extend to the local fire officials and there was no evidence of any coordination with the State Fire Marshal’s Office on the issuance of those Cease & Desist Orders back in 2007-2012.

Additionally, a well-known SFM Declaratory Stmt., In the Matter of Wagner, 128015- 12-FM, confirms the long-standing common knowledge that local fire officials may not issue cease and desist orders under Ch. 633, although they can enforce properly issued Cease & Desist Orders under FS 633 and MD County Sec. 14-44. Even opposing counsel admits that “In re Wagner does fi nd 633.161 inapplicable to municipal officials… “. However, opposing counsel then misrepresents that the local fire marshal has the authority given by other means, such as NFPA 1 Sec. 1.7.6.2,1.7.7,1.7.14. (see Exhibit 11)

A closer look at those sections reveal that all they do is give the AHJ authority to “order person to remove dangerous ..condition…”, (Sec. 1.7.6.2); or “Where dangerous conditions exist….AHJ shall have authority to abate such hazardous conditions…. /I (Sec. 1.7.7); or “The AHJ shall have authority to order an operation or use stopped ….when such building has hazardous conditions… /I ( see Sec. 1.7.14). These are obvious authorities that do not need explaining, however nowhere does it state the AHJ can issue Cease & Desist Orders that subsequently result in the violator being arrested. It is bad faith for opposing counsel to make those representations of a conveyance of authority when in fact they say nothing of the kind. Opposing counsel misrepresents that in addition to the above, the City also has authority to issue Cease & Desist orders as per the City Municipal Code, 50-4(i), and to have persons arrested for fire code violations.

[See Exhibit 7- Ordinance No. 2013-3813, where City unilaterally gave itself the powers the State Legislature said are specifically reserved for State Fire Marshal: the power to issue Cease& Desist Orders pursuant to F.S. 633.]

However, the City modified that municipal code section only in Oct. 2013. Therefore, all those “Cease & Desist Orders” issued prior to 2013, that led to multiple shutdowns of plaintiff s business and his eventual arrest, should be null & void ab initio, as the local fire marshal did not have authority to issue them. Thus, the plaintiffs arrest for violating those “Cease & Desist Orders” should also be null & void, ab initio. So not only did the local fire marshal know her scheme had defects, she carried them out anyways, in such reckless fashion, that opposing counsel had no choice but to deceive this court and suppress this information. Smolker did raise this argument in a Nov. ’14 motion, however it was too little too late, as this Court denied the motion as being moot after it granted City’s motion for final summary judgment.

V. Fire Marshal Does Have Leeway to Exempt Sprinklers

It is also misleading for the City to argue that its hands are tied regarding the mandate of fire sprinklers. This is because the City of Miami Beach never formally enacted any ordinance requiring more strict guidelines for sprinklers. Since Sadigo Court is not a “new” hotel structure, nor undergoing a “change of occupancy”, there is no fire code section that requires sprinklers in an existing 38’ tall hotel-like structure. If there is, then let opposing counsel produce it. Furthermore, F.S. 633.022(2)(b), the Uniform Fire Safety Standards, specifically states that the “local authority may, on a case-by-case basis, in order to meet special situations arising from ….historic….conditions…..authorize equivalent alternative standards”.

Although it is an apartment building by its occupational license, it is an existing hotel, by fire code definition FFPC, Ch. 29 which states: “the term hotel …..shall include a hotel, an inn, a club, a motel, a bed and breakfast, or any other structure meeting the definition of a hotel i. e., transient apartment”}.The Sadigo was built actually as a transient apartment house, hence the original name, Sadigo Court Apartment Hotel, and thus satisfies FFPC Ch. 29, as only existing hotels over 75 feet must be sprinklered.

Also, in FS 509.215(4) , it states the AHJ or fire official shall grant an exception to the fire sprinkler requirement for “contributing” historic structures like the Sadigo Court. In the fire code, the definition of “shall” means a mandatory requirement. (see FFPC Ch. 3.2.6) Ironically, opposing counsel is deceiving this Court into thinking a fire marshal has no leeway into exempting fire sprinklers under the laws and codes. In all actuality, under the FS 509 statute it is the AHJ and tribunal s like the Task Force that have no leeway in denying the exception from sprinklers for a “contributing” historic structure like the Sadigo Court.

VI. Blatant Misrepresentation of Local Ordinance

Plaintiffs actions regarding Count V were not frivolous because the apartment licensees have a “vested right” in an RM-2 zoning district to sell short-term rentals. Additionally, plaintiff cited the new “Vacation Rental Law”, FS 509.032(7)(b), as added proof that it could sell short-term rentals without changing its license because as of the statute’s enactment date of June 2, 2011, there were no city ordinances on the books restricting short-term rentals in any RM-2 district. [Although the new short-term rental statute creates a new category of Transient establishments, “vacation rentals”, the new law generally prohibits municipalities, unless they have a law prior to June2, 2011, from restricting short-term rentals on the basis of occupancy classification, i.e., apartment, bed and breakfast, single-family, rooming house, etc….(see also White Paper: “ShortTerm Rental Housing Restrictions”, Robinson & Cole, LLP, p. 13-14 (2011- Exhibit 12)] However, the City brazenly argued that plaintiffs use of that landmark law is “irrelevant and a classic red-herring” because it already had an ordinance , # 20 I0-3685 , that restricted short-term rental s and existed prior to June 2, 2011. (see Exhibit 8) Remarkably, this in part caused the Court to dismiss plaintiffs Count V when that ordinance clearly does not even apply to Sadigo’s RM-2 zoning district! Thus, the City has repeatedly mislead Courts into believing it already had an ordinance restricting Sadigo’s short-term rentals, when in actuality it never did back then and it does not have one today.

VII. A Lot of Billings, Very Little Results

Although there is no guarantee of success in civil litigation, a plaintiff must be certain his attorneys are not succumbing to the City’s arguments because they would rather treat their client like a ATM, rather than vigorously advocate their client’s positions. Opposing counsel points out that plaintiff had so many lawyers and he still lost every time. And although this may be true, the reason is every lawyer, except one or two, had the propensity to do things harmful to the client, while remarkably always beneficial to the City.

Plaintiffs original lawyers back in 2007 advised him that being a “contributing” historic building is irrelevant when considering sprinklers and there are no statutes, fire code sections or otherwise that can help the historic Sadigo Court stave off a mandate of sprinklers from a local fire marshal, as she is the “Authority Having Jurisdiction”. That same lawyer never advised client that he could engage a fire engineer to submit a sealed and certified “Equivalency Report” that remediates the sprinkler requirement, as per NFPA 914, Code for Historic Structures and/or Florida Building Code, Existing, Ch. 1105/6. It is no coincidence that the City now claims all those Equivalency Reports are unacceptable. It is also no coincidence that opposing counsel now cites these “previous attorney, architect and engineer” as one of the groups who disagreed with their client’s assessment regarding historic buildings and fire sprinklers.

That same firm never advised their client that Sadigo Court can have a State Transient Apartment License, along with its local apartment license, and still sell short-term rentals. Instead, it advised Sadigo that if it wanted to sell short term rentals it would have to undergo a change to hotel and obtain new licenses in order to operate. The City has spent its resources these past eight years backing up the well-connected land-u se law firm, as well as their incorrect determinations regarding, land-use, fire codes and sprinklers. It is palpable that the City and plaintiff could have resolved this back in 2007 if the law firm only honestly advocated on behalf of its client that: 1) the Sadigo Court is an apartment licensee with “vested” rights that allow it to sell short-term rentals in its RM-2 zoning district and 2) it can do so without sprinklers due to the fact that Sadigo is also a “contributing” historic structure, as per FS 509.215(4).

In yet another disappointing display of legal advocacy, another law firm representing client in over two days of hearings, failed to advise the state court judge in the injunctive-relief case involving the City back in 20 II , that the Sadigo is located in a RM-2 zoning district. This is crucial when determining the right to sell short-term rentals. That same lawyer changed plaintiff’s affidavit without informing client and client mistakenly signed it where it stated “after the hearing I protested in a judge’s chamber” . Not only was this not true, but it unfairly cast client as litigious crybaby that rudely protest bad decisions. [see Exhibit 9- Truitt email to client dated 7/12/11] Fortunately, the attorney agreed to change the paragraph in question the next day and this is reflected on the docket sheet in case. However, the damage was already done. The incorrect affidavit still remains on the books and was even sent up on appeal as part of the City’s Appendix to Appellee’s Answer Brief instead of the corrected one.

Also, that same lawyer, despite City attorneys making those previously mentioned false statements regarding apartments inability to sell short-term rental s, failed to lodge one objection. The City, during those same two days, lodged 15 objections. (see Transcripts on 6/30/1 1 & 7/6/11 in Eisenberg v. City of Miami Beach. Case No. 11 -20234 CA 22) Another lawyer filed a crucial memorandum of law too late before a hearing regarding a motion for relief from judgment that the judge refused to read or accept. The memo contained exculpatory evidence showing the Planning Director stating that after the landmark state short-term rental law, F.S. 509.032(7) became effective, it restricts City’s ability to prevent certain apartment licensees from selling short-term rentals.

[12 see Exhibit 11- Memorandum of Law in Support for Motion for Relief from Judgment. Eisenberg Dev. Corp. v. City of Miami Beach, Case No.I I-2 0234 CA 01(15), filed two days before 4/30/13 hearing and was not accepted by Judge Rodriguez. Smolker Bartlett attorneys advised plaintiff to voluntarily dismiss this state court motion for relief under Fl. Rules of Civ. Pro. 1.540(b), which plaintiff did.]

So as one can see, it has been a calamity of errors perpetrated by the numerous attorneys who all thought client had a great case at the onset, only to result in them doing something incompetent and benefitting the City in the end. This was plaintiffs experience dealing with lawyers on this case: they always did things that ended up hurting plaintiff s position or reputation. In good faith, plaintiff has spent hundreds of thousands of dollars, in respect of the litigation process, to have able legal counsel independently evaluate and consult through the issues involving short-term rentals and fire safety. However, all that money still resulted in the City’s campaign of misrepresentation of the statutes, facts and code sections, resulting in unjustified victories at every turn.

CONCLUSION

Despite the City’s arguments that plaintiff s case is frivolous, without any foundation , the above shows the exact opposite. Plaintiffs case was strong because there actually are many comparators, that is apartment licensees selling short-term rentals . The only problem plaintiff had was getting their lawyer, Smolkeret.al., to provide them to this Court. Even if this Court believed that the Sadigo must change into a hotel, that change is only a “change of use”, not a “change of occupancy”. Thus the applicable fire code chapter is Ch. 29, not Ch. 28 and Ch. 29 exempts all existing hotels under 75 ft. So the Sadigo does comply with FFPC. It also complies with the Uniform Fire Safety Standards because under Florida law the uniform Standards are the same standards as the FFPC. (see Rule 69A-43.019- Exhibit 12)

Sadigo also complies with FS 509.215(4) because it is a “contributing” historic structure. City once again misrepresents to this Court that FS 509.215 only applies to transient public lodging establishments that were licensed prior to 1994. As shown above, FS 509.215 applies to both non-transient and transient public lodging establishments. The City also misrepresented to this Court by stating there is a universal sprinkler mandate for all transient establishments, “without exception”. This is absolutely false as shown by the numerous buildings in Exhibits 1& 2 provided by City selling short-term rentals without sprinklers.

Lastly, the City has recklessly issued those Cease & Desist Orders from 2007-2012 without having the proper authority to do so and thus they are null and void, ab initio. With its unlimited public resources, the City has maligned the case and caused the legal process to be unfair. They have created problems for plaintiff when none should have existed. Thus, as the above shows, one does not need to have an expertise in fire sprinklers to know that the Sadigo Court is exempt from sprinklers, as a matter of law. The only problem is that this City does not wish to acknowledge that law and has spent obscene amounts of money to distort the truth in the laws and fire codes. For this reason alone, they clearly are a government not for its people. They should not be permitted to allow their numerous misrepresentations to dictate the narrative of this case. Doing justice in a case and obeying the Canons of the Florida Bar are more important than achieving a win at any and all cost. Therefore, Plaintiff respectfully request this Court to deny Defendant’s motion for entitlement and grant such other relief as the court deems just and appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERT1FY that on 6/4/15, I filed the foregoing with the Clerk of the Court and sent filing to all counsel and parties of record on this 4th day of JUNE, 2015.

SOHO Restaurant at Bentley Bay, forced to close for nearly three months by unanticipated road construction, has finally reopened. The event was celebrated with the community in a two-hour, exceedingly generous Grand Reopening, well attended despite the fact that ingress from West Avenue was still blocked and access was otherwise tricky.

The closing in August was not so grand. Max Heindl, its general manager, complained to the New Times that the road construction that completely boxed in the upscale sushi restaurant on the north end of West Avenue had not been planned overnight although it caught him by surprise. He said he could have kept the place open with no customers or shut it down to save on expenses, likening the option to having a gun put to his head.

The closure naturally resulted in a significant loss of impetus, diminishing the expectations of potential customers, to mention the loss of employees, and the current loss of least $2 million of revenue, putting quite a drag on an estimated $3.5 million capital investment not counting extraordinary startup costs.

The gun is still to the head, figuratively speaking. Martin Marsh, SOHO’s assistant general manager, declined to discuss the numbers and other proprietary information except to say that the owners were “not exactly thrilled” by the circumstances; the gun-to-the-head metaphor was “a little excessive”; the restaurant was “working with the city” including a commissioner, in “an ongoing process to resolve issues”; and it would be “inappropriate” to complain about city officials.

He said he did not know if the landlord, prominent realtor and developer Scott Robins, a close friend and partner of developer Mayor Philip Levine, was aware of the upcoming road construction when he leased the space. He said that, to the best of his knowledge, Mr. Robins was not involved in working anything out with the city.

Government agencies are occasionally sued for interrupting businesses with construction. For example, Michael Jordon’s Steakhouse, which opened in 1998 and spearheaded the revival of Grand Center Station, has sued a state agency, the Metropolitan Transit Authority, for literally destroying its business with construction activities.

Holding cities liable for damages even for grossly negligent conduct is problematic in Florida given the sovereign immunity bestowed on agencies by the state’s highest court despite a statute supposedly waiving it. Sovereign immunity is said to have only added to the negligence and arrogance of public officials.

A sympathetic general manager for a Lincoln Road establishment, commenting anonymously to protect his business from retaliation, said that SOHO never should have tried to open when it did. It should have waited for construction to end, if it had known it was coming, and that would include the promised installation of a dock at its entrance where yachts could land.

“May God help them,” he said.

He recalled that Lincoln Road retailers and restaurants had recently approached City Manager Jimmy Morales about the scheduling of the upcoming re-landscaping of Lincoln Road. He said Mr. Morales promised there would be plenty of time before approval to work things out with the businesses. Two weeks later, the plan was approved without their input. He characterized the city manager as a liar in vulgar terms, saying businesses should never trust him.

He also said that the city would pay SOHO’s rent to Scott Robins for the period it was closed. Commissioner Michael Grieco denied that has yet occurred because it would have to be approved by the commission.

Brazilian Restaurateur Karine Queiroz opened her first restaurant in 1998, in Bahia. She had eight restaurants in Brazil when she opened in South Beach. She has nearly doubled her restaurant count since 2013.

She has not responded by deadline to several questions forwarded to her; for example, whether she believes the City of Miami Beach is easier to deal with than so-called Third World governments, and what is the secret of her success. We shall have to guess.

Location is important, but is not the all. SOHO is located at the Miami Beach end of MacArthur Causeway, which is becoming a sort of traffic center given recent developments. It is remote from other restaurants except for a successful one at the yacht harbor nearby, yet that is no problem if it can attract the sort of upscale clientele that live the beside water in that neighborhood, in addition to people who yacht and drive in. Parking and easy pedestrian access are key.

View from Dining Room

Of course employing the right wait staff, the foot soldiers, is crucial to success. They will be personable, intelligent servers committed to providing excellent service, and will want to stay around, on the average, for several years. That means they will need good tips. So the restaurant must be busy, and that means it must have, besides good service, good food hence good chefs and cooks.

SOHO is fusion sushi, and fusion is in now. When an area is flooded with the fusion of this and that with Asian or whatever, the fusion must be something special. Ricky Sauri, executive chef, is taking care of that at SOHO. He has top-notch experience. Besides, we know that many of the best chefs in the country are Puerto Ricans.

Ricky has Max Kamakura, an amazing Japanese sushi chef from Brazil, on his team. Fabian Failla, the service manager, had Max prepare a spectacular assortment of sushi for me. I asked Max if the delightful combination or all the items on the plate was on the menu. He said he would probably not duplicate the plate or some of the items in the future as he preferred to be creative once he knew the general preferences of customers.

Of course a good restaurant must have excellent management to facilitate the performance of everyone they manage instead of getting in their way and alienating them, and they must please customers and owners, and do a myriad of things including working things out constructively with city officials.

SOHO business is still impeded by construction besides West Avenue construction blockade. At present the large parking lot beside 520 West Avenue is helpful, but it will be soon replaced by a garage, so more construction. The intersection at Fifth and Alton is lacking two crosswalks that would allow pedestrians to safely approach the front entrance from the shopping center and the South of Fifth neighborhood. Again, access by car is tricky.

Notwithstanding the current impediments, the Grand Reopening was packed with people who managed to arrive to consume what must have been $20,000 in food, not to mention staffing costs.

Healthy Photo Credit- Michael Trainer

Mr. Marsh is a smart young man with good public relations skills. When I commented that it is taking way too long to get the restaurant up and running, he said that SOHO’s objective is “not to be the restaurant of the year,” but to “grow organically.”